Coyle v Minister for Immigration
[2019] FCCA 3173
•6 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COYLE v MINISTER FOR IMMIGRATION | [2019] FCCA 3173 |
| Catchwords: MIGRATION – Application for judicial review – where the applicant is now deceased – appropriate resolution of proceedings – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.1.05 Federal Court Rules 2011 (Cth), r.9.09 |
| Cases cited: ASZ15 v Minister for Immigration & Border Protection [2017] FCA 203 |
| Applicant: | ALICE COYLE |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | PEG 266 of 2017 |
| Judgment of: | Judge Kendall |
| Hearing date: | 30 October 2019 |
| Date of Last Submission: | 30 October 2019 |
| Delivered at: | Perth |
| Orders Pronounced: | 30 October 2019 |
| Delivered on: | 6 November 2019 |
REPRESENTATION
| Applicant: | Mr P Munch (with leave) |
| Counsel for the Respondent: | Ms G Ellis |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
Written reasons for judgment be published from Chambers at a later date.
There be no order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 266 of 2017
| ALICE COYLE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
On 30 October 2019, the Court made orders in the following terms:
1. The application be dismissed.
2. Written reasons for judgment be published from Chambers at a later date.
3. There be no order as to costs.
These reasons are those referred to in order 2 above.
Background
This is a most unfortunate case.
On 5 April 2017, the applicant applied to the respondent asking that Condition 8503 be waived. Condition 8503 prevents a person from applying for a further visa while in Australia. The applicant sought to have this Condition waived in order to care for her granddaughter who was ill at the time.
On 27 April 2017, the respondent decided not to waive Condition 8503.
The applicant applied for judicial review of that decision on 24 May 2017. Orders were made by a Registrar of this Court on 21 July 2017 listing the matter for final hearing in 2020. The matter has remained idle since this time.
On 21 October 2019, the Court received an affidavit of Paul Munch, the applicant’s grandson. The affidavit annexed a copy of the death certificate of the applicant who passed away on 19 September 2019. The Court extends its sympathies to Mr Munch and the applicant’s family.
Mr Munch sought to discontinue the proceedings. He did not, however, have evidence of his capacity to do (as an executor or otherwise). The matter was listed today for directions on 30 October 2019 determine how to proceed.
At the directions listing, the Minister submitted that the appropriate course was for the application to be dismissed. Appropriately, the Minister did not make an application for costs.
Consideration
The Court agrees with the Minister that the proceeding should be dismissed.
There is no provision in this Court’s rules for how a matter is to proceed when a party dies.
Rule 1.05(2) of the Federal Circuit Court Rules 2001 (Cth) provides that this Court can apply the Federal Court Rules 2011 (Cth) (the “FC Rules”) if appropriate and necessary. Rule 9.09(1) of the FC Rules provides:
If a party dies, or becomes bankrupt, during a proceeding but a cause of action in the proceeding survives, the proceeding is not dismissed only because of the party’s death or bankruptcy.
In Phung v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 821 at [5], Justice Ryan stated
A visa is a purely personal licence: it is a permission under statute to remain in Australia, granted by the Minister; s 29(1). A bare visa confers no rights on any other person. Following Mr Phung’s death, any visa held by him, or to which he may have been entitled, no longer has any effect and can confer no legal rights upon anyone else that could form the subject matter of a proceeding in this Court… Nobody can any longer be affected in a legal sense by the impugned decisions or the outcome of any application for judicial review. To continue the proceedings would be without purpose. Further, as a visa cannot survive the visa-holder, because of its inherent character as a personal licence, these proceedings are now without any legal object or subject matter. Indeed, in Kalejs, the substantive case had been heard but not decided, and it was held that not even the estate’s interest in obtaining a favourable order for costs was effectual to preserve the cause of action. Mr Phung’s case had not even reached that stage. There is no tenable argument that a visa, following the death of a visa-holder, is capable of giving rise to a matter within the jurisdiction of this Court.
Even if the Court were satisfied that the decision the subject of the judicial review application was impugned with jurisdictional error, relief would be withheld because, quite simply, it would be of no utility or purpose to grant any relief.
The remarks set out above have been applied in the more recent case of ASZ15 v Minister for Immigration & Border Protection [2017] FCA 203. The Court is bound by these remarks.
Conclusion
Mr Munch did not object to the Court dismissing the matter.
For the reasons outlined above the Court made orders dismissing the application brought by the deceased.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 6 November 2019
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